Opinion
8793-07.
Decided June 17, 2008.
For the People: Dennis Geoghan, Assistant District Attorney, Kings County.
For the Defense: James Kirshner, Esq., Lazzaro Law Firm P.C.
Defendant Armando Pierre has submitted a motion dated April 17, 2008 seeking to dismiss the indictment on the grounds that the integrity of the Grand Jury proceedings were impaired due to the nature of the prosecutor's cross-examination of defendant concerning his previous convictions.
The People have chosen to rely upon the record before the Grand Jury and not to respond specifically to this defense motion. In that connection they have submitted the Grand Jury minutes to the Court for inspection. The Court's decision regarding those minutes is part of this opinion.
Based on this review the Court finds that the evidence adduced is legally sufficient to support each and every count of the indictment. See, People v. Bello, 92 NY2d 523 (1998); People v. Jennings, 69 NY2d 103, 115 (1986).Additionally, the assistant district attorney correctly charged the Grand Jury on the applicable law. People v. Calbud, Inc., 49 NY2d 389 (1980).
IMPAIRMENT CLAIM
Defendant is charged with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39-1) and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). Defendant argues that the prosecutor's cross-examination of him in the Grand Jury sought only to demonstrate defendant's propensity to be associated with drugs, rather than to impeach his credibility. Defendant was asked about most, but not all, his prior convictions, including three drug possession convictions and a conviction for operating a motor vehicle while impaired by drugs. Was that permissible or not as part of the prosecutor's cross-examination in the Grand Jury? People v Thomas, 213 AD2d 73 (2d Dept 1995), aff'd 88 NY2d 821 (1996), a case not cited by the defense, is in the Court's view controlling. There, the Court held that a defendant's prior criminal record was proper cross-examination before the Grand Jury, even where some prior convictions were similar to those charges being presented to the Grand Jury. The Court held that such questioning did not impair the integrity of the Grand Jury proceedings and that a defendant is not entitled to a Sandoval hearing before he testifies before the Grand Jury. The Court noted that the purpose of a trial is to determine, in an adversarial setting, whether the People have proven defendant's guilt beyond a reasonable doubt, whereas the purpose of a Grand Jury proceeding is solely to determine whether there is sufficient evidence to warrant further criminal proceedings against the defendant. The Court opined that due to this "crucial distinction" between a Grand Jury proceeding and a trial, a defendant's testimony before a Grand Jury is of lesser importance than it would be at trial. Thomas, 213 AD2d at 78.
In accordance with the holding in Thomas, this Court finds that the integrity of the Grand Jury was not impaired by the number of previous convictions about which defendant was questioned. [ See also, People v Williams , 49 AD3d 672 (2d Dept 2008), where the trial court ruled defendant, if he chose to testify, could be asked about forty-five misdemeanors and one felony conviction, but not the underlying facts.] Moreover, the mere fact that a defendant's prior convictions, allowed to be used on cross-examination at trial, are similar in nature, or even identical, to the instant offenses does not automatically warrant their preclusion. See, People v Fotiou , 39 AD3d 877 (2d Dept 2007), lv. denied, 9 NY3d 843 (2007); People v. Dahlbender , 23 AD3d 493 (2d Dept 2005), lv. denied 6 NY3d 832 (2006). It is well-settled that a defendant is not shielded from impeachment because he specializes in one type of criminal activity. See, People v. Pavao, 59 NY2d 282 (1983). In short, even while Thomas implies there are limits to this type of cross-examination of a defendant in the Grand Jury, it is clear that the record in Pierre falls quite short of exceeding those limits.
Finally, the Court notes that the prosecutor properly instructed the Grand jury that defendant's previous convictions were to be used in weighing credibility and not for establishing proof that defendant committed the crime with which he was being charged.
Accordingly, for all the reasons stated herein, defendant's motion is DENIED in all respects.
IT IS SO ORDERED.